Benade and Another v Metsimaholo Hospital and Others (86/2013) [2020] ZAFSHC 67 (3 February 2020)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case number: 86/2013

In the matter between:

A.C

BENADE First

Plaintiff

R.D COETZEE Second

Plaintiff

and

METSIMAHOLO

HOSPITAL

First Defendant

MEC FOR HEALTH,

FREE STATE Second

Defendant

PREMIER OF THE FREE

STATE

Third Defendant

CORAM: VAN ZYL, J

DELIVERED ON: 3 FEBRUARY 2020

[1] This judgment only pertains to costs after the matter had been finalised on both merits and quantum, but the issue of costs could not be finalised due to the existence of an offer to settle in terms of Rule 34.

[2] Each plaintiff claimed damages in the total amount of R1 000 000.00, consisting of R200 000.00 for future medical and related

expenses and R800 000.00 for general damages, with the cause of action being based on medical negligence.

[3] On 16 May 2016 the matter was postponed in order for an interpreter to be arranged, with the wasted costs to stand over for later adjudication. In my view those wasted costs should be costs in the action.

[4] On the second day of the trial a settlement was reached between the second plaintiff and the defendants, which settlement was for the amount of R 150 000.00, excluding costs, which issue had to stand over due to the fact that tender included an offer made to the first plaintiff whose trial proceeded. After the finalisation of the trial I awarded the total amount of R432 692.00 to the first plaintiff, consisting of R31 692.00 for future medical and related expenses and R400 000.00 for general damages.

[5] The heading of the Notice which was eventually disclosed to me, reads “Notice of Offer of Settlement i.t.o Rule 34(1) & (5)”. The crux of the contents thereof reads as follows:

“1. To pay each Plaintiff the capital sum of R150 000.00 for a total of R300 000.00…”

2. The Defendants tenders the Plaintiff`s taxed or agreed party and party costs to date of delivery of this tender, on the High Court or Regional Court scale, the scale to be agreed on or ordered by court. The defendant also tenders a reasonable spatium deliberandi thereafter (the duration of which is either to be agreed between the parties, or if no agreement can be reached, to be determined by the Court on application to it).”

[6] The said notice was served on the plaintiffs` attorney of record approximately two years before the trial date.

[7] Ms Makopo, appearing on behalf of the defendants, submitted that the offer was inclusive of costs and that the second plaintiff was aware of the tender of costs being on Regional Court`s scale and that the defendants are therefore liable for the second plaintiff`s costs only up to 15 days from the date the tender was made. Insofar as the first plaintiff`s costs are concerned, the defendants conceded that the first plaintiff has been successful and therefore the costs should follow the result.

[8] Mr Roos, appearing on behalf of the plaintiffs, submitted that in view thereof that the second plaintiff did not accept the offer within the prescribed time period, it should be considered that the second plaintiff rejected the offer. He contended that the offer in any event did not comply with the provisions of Rule 34 and the settlement concluded between the second plaintiff and the defendants was a settlement separate from the offer.

[9] In terms of Rule 34 a Court retains its discretion pertaining to appropriate costs orders. In Naylor v Jansen 2007 (1) SA 16 it was determined that two important consideration be borne in mind in the exercise of such a discretion, namely the purpose behind the Rule and that the Rule in no way fetters the judicial exercise of the discretion.

[10] In my view the answer lies in the following. In the Law of Costs, AC Cillie, Updated October 2019, at para 2.24, the following dictum appears:

“As a general rule a litigant instituting proceedings in a high court when he ought to have proceeded in a lower court will be mulcted in costs in so far as he will, if successful in his claim, be awarded costs only on the scale applicable in the forum he ought to have chosen. To this limited extent, therefore, costs follow the event.

For these purposes, the correct moment for determining the relevant monetary threshold (ie, the sum embodying the jurisdictional boundary between the Magistrates’ Court and the High Court) is when summons is issued.”

[11] In this matter summons was issued in January 2013, when the monetary jurisdiction of the Regional Courts was R300 000.00. The two plaintiffs throughout made use of the same set of attorneys and the relevant facts of the disputes between the plaintiffs on the one hand and the defendants on the other hand, were similar and intertwined. The first plaintiff would in any event have been entitled to institute her claim in the High Court considering the amount of damages awarded to her. It would therefore have been nonsensical for the second plaintiff to have instituted a separate action in the Regional Court. All relevant litigation costs would that just have been double.

[12] In the circumstances he was entitled to reject an offer which was on the bases of costs on Regional Court scale. He was therefore in my view entitled to negotiate a new settlement at the commencement of the trial and is entitled to costs up to that date on High Court scale.

[13] The plaintiffs are furthermore entitled to the usual orders pertaining to the costs of their expert witnesses in the adjudication

of the quantum trial.

Order:

1. The wasted costs occasioned by the postponement of the matter on 16 May 2016 are to be costs in the action.

2. The defendants are ordered to pay the costs of the action pertaining to both the plaintiffs, jointly and severally, payment by the one, the other to be absolved, on High Court scale, subject to paragraph 2, infra.

3. With regard to the second plaintiff`s costs of the action, such costs are to be calculated up to and including the day of trial on which the settlement between the second plaintiff and the defendants was agreed upon.

4. The aforesaid costs of the action pertaining to both the plaintiffs are to include (but not limited to) the following:

4.1 The costs of obtaining by the plaintiffs the reports of the experts and the reasonable preparation, qualifying and reservation fees (if any) of the following experts:

4.1.1 Dr H.J. Swanepoel;

4.1.2 GRS Actuarial Consulting CC.

4.2 The reasonable travelling and accommodation expenses for attendance at Court, if any, of the following expert:

4.2.1 Dr H.J. Swanepoel.

4.3 The reasonable travelling and accommodation expenses of both plaintiffs for attendance of the trial, for purposes of which they are declared necessary witnesses.

4.4 Counsel`s fees.

4.5 All written heads of argument.

5. In the event that costs are not agreed upon, the plaintiffs shall serve a notice of taxation on the defendants’ attorney of record.

6. The plaintiffs shall allow the defendants fourteen (14) court days to make payment of the agreed or taxed costs, or such longer period of time as may be agreed upon by the parties, where after the defendants will be liable for the payment of interest a tempore morae calculated from the said date until the date of payment.

7. The aforesaid costs are to be paid into the trust account of the plaintiffs` attorney of first instance:

Account holder: Elmarié de Vos Incorporated

Bank: Standard Bank

Branch: Vereeniging

Type account: Trust/Cheque account

Account number: 021844143

Branch code: 014637

Refernce: EDV/833VER

_____

C. VAN ZYL, J

On behalf of the plaintiffs:

Adv. J.T. Roos

Instructed by:

Honey Attorneys

BLOEMFONTEIN

On behalf of the defendants:

Adv. N. Makopo

The State Attorney